July 22nd 2019

By Sarah Lustbader

The Appeal

Late last month, the internet seemed to explode after a Twitter user posted a video depicting a young woman licking a tub of Blue Bell ice cream and putting it back in a supermarket freezer. It was the kind of news so many were craving: cheeky fun where no one got hurt or me-too’d or deported.

Texas authorities approached the matter with all the gravity and severity that many wish President Trump would approach the treatment of migrants at the border. “Within an hour of the corporate plea, a Lufkin division manager called, saying he believed” the video was taken at his Walmart, according to BuzzFeed News, based on “the store’s unique merchandising which matched the video.” Police then located surveillance footage and had all the half gallons of Blue Bell Tin Roof ice cream removed from the store. Authorities announced that the suspect would be charged with tampering with a consumer product, a second-degree felony that includes a jail sentence of two to 20 years. Once police did identify someone, she turned out to be a 17-year-old girl who will not be identified because of her age, and, as of now, will not be charged as an adult. That did not stop Governor Greg Abbott from congratulating police for tracking down the “despicable criminal” involved.

The tone of news coverage fluctuated between puckish and punitive. “Woman in Viral Video Who Licked Carton of Ice Cream and Put It Back Could Go to Jail,” crowed Vice in a recent headline. The magazine added: “Fun fact: Licking food and putting it back on the shelf isn’t just super disgusting; it’s also a felony!” It isn’t clear what about that fact is “fun,” but the headline actually hit on a deeper question raised by the case: What is a crime?

No one called it a crime in April 2015 when 10 people in four states were hospitalized after eating Listeria-tainted Blue Bell ice cream. Three of them died. In Texas Monthly, Dan Solomon pointed out the irony that “the first person to face criminal charges related to contaminated Blue Bell ice cream would be a kid who posted a video of herself pulling a dumb prank, and not any of the people who were at the company when their product literally killed people.” The listeria outbreak “wasn’t an unavoidable accident of fate. The FDA investigation into the company contained multiple observations related to practices that smack of negligence,” Solomon continues, but no one was charged with a crime. The Centers for Disease Control and Prevention found that those practices had actually been making people sick as early as 2010. And an FDA investigation revealed that Blue Bell had discovered listeria bacteria two years prior, most likely the result of poor sanitation practices, but they failed to address or publicize the problem, writes Jenny Zhang for Eater. The state fined the company $850,000, $675,000 of which was eligible to be forgiven, following an agreement between Blue Bell and the state.

The incident wasn’t treated as criminal by the public, either. At the time, Peter Elkind chronicled for Fortune how the company’s pattern of indifference and denial did not lead to widespread condemnation but rather cultlike support. Residents of Brenham, where Blue Bell’s headquarters are located, held a prayer vigil.  Senator Ted Cruz of Texas posed for a photo with a sign that read: “God bless Blue Bell.” Governor Abbott did not call the corporate executives “despicable criminals,” as he later called the 17-year-old girl who harmed no one. Instead, Abbott celebrated Blue Bell’s return to grocery stores with the message: “Texans can rejoice today as Blue Bell ice cream makes its long-awaited comeback in freezer aisles across the state.”

Zhang attributes the difference in the reaction to “a strange quirk of the human psyche that we are so often more preoccupied with the actions of individuals, rather than the actions of … larger corporations, institutions, and systems.” There is undoubtedly truth to this, but, as she later notes, “when a teenage girl faces more hostility and calls for jail time for a prank than a multi-million-dollar company that failed to protect its consumers, that’s when you really have to stop and consider who gets assigned blame, and who gets exoneration, in the eyes of the public.”

But it is about more than that. It is also about the kind of people, and the kind of actions, that we decide are criminal. In the popular imagination, a young person, especially a young person of color, pulling a prank is “criminal”; a corporate executive coldly choosing to risk lives in favor of profit is “rational.” Legally, legislatures draw lines between criminal liability and civil offenses. For some reason, jumping the turnstile in the New York City subway, a “theft” of $2.75, is a criminal offense, but most driving violations, including ones that actually put lives at risk, are civil.

Legislatures make those laws, but prosecutors are the ones putting those boundaries into practice. Just today, federal prosecutors announced that they would not bring charges against Daniel Pantaleo, the NYPD officer who killed Eric Garner, as he begged for his life. Pantaleo will not be a criminal.

But if prosecutors in Louisiana have their way, a man will be convicted for licking ice cream which he later bought. Police have arrested a man who posted a copycat video on Facebook of himself licking a carton of ice cream in a supermarket, even though he showed a receipt indicating that he bought the ice cream afterward. Lenise Lloyd Martin III, a 36-year-old unemployed man, was jailed for at least several days on charges of criminal mischief for tampering with a product before purchase, and with “unlawful posting of criminal activity for notoriety and publicity,” a “rarely used Louisiana law that makes distributing a video of oneself breaking the law punishable as an additional crime,” the New York Times reports. One defense lawyer said that the authorities appeared to be trying to make an example out of Martin in an effort to put a stop to any future copycats. A spokesperson for local law enforcement told WAFB that anyone who mimics the ice cream raiders will be prosecuted “immediately and with the full extent of the law.”

If it is not the conduct itself but rather its potential consequences that justify harsh criminal penalties in these ice cream licking cases, why shouldn’t that apply equally to corporate negligence?

Corporate accountability, at least in this case, might be forthcoming. Coincidentally, nine days before the notorious ice cream licking video was posted, the Houston Chronicle reported that a judge allowed a civil lawsuit against Blue Bell stemming from the listeria outbreak to continue, noting that “yellow and red flags” in the company’s food safety program had appeared as early as 2009, but received virtually no formal discussion or response by the board.

Posted with permission